Voluntary Disclosure of Communication with Counsel: TB Court of Appeal Recognizes ‘Subject’ Waiver | Pullman & Comley, LLC

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In Ghio v. Liberty Insurance Underwriters, Inc., 212 Conn. App. 754 (2022), the Connecticut Court of Appeals (Bright, CJ) first addressed, and adopted as law, the object disclaimer rule in Connecticut.

The subject waiver rule provides that the voluntary disclosure of the contents of a privileged solicitor-client communication constitutes a waiver of privilege with respect to all other solicitor-client communications on the same subject.

The purpose of the rule is to ensure fairness and to discourage the use of privilege as a legal weapon. “A party should not be allowed to assert privilege to prevent an investigation by an opposing party when the professional opinion, itself, is offered as an explanatory defense for impugned conduct.” Identifier. at 770 (citing Zirn v. VLI Corp., 621 A.2d 773, 781-82 (Del. 1993)). Additionally, the rule serves to prevent a party from strategically using attorney-client privilege to further the interests of the client by selectively disclosing otherwise privileged information. Identifier.

While the rule’s application in Connecticut presented a matter of first impression in Ghio, other jurisdictions have adopted it and, in fact, it is a mainstay of the federal rules of evidence. See Fed. A. Obviously. 502(a).

In Ghio, the Court of Appeals formally adopted the object waiver rule as law in Connecticut and decided that Fed Rule 502(a). A. Obviously. should guide the appropriate analytical framework for determining whether, in a particular case, a renunciation of purpose has occurred:

Accordingly, we believe that the voluntary disclosure of a privileged attorney-client communication constitutes a waiver of privilege with respect to all other communications concerning the same subject matter where the trial court determines that the waiver was intentional and that fairness dictates that disclosed information and undisclosed communications are considered together.

Identifier. at 775-76. Unintentional or inadvertent disclosure of protected attorney-client information can never result in a waiver of subject matter. Identifier. at 776 (citing Fed. R. Evid. 502, Advisory Committee Notes).

If the trial court finds that the rule applies, it must then determine the scope of the waiver. This requires a factual investigation into “the nature of the disclosed communications, as well as the communications held to be privileged.” Identifier. at 776; see Fort James Corp. vs. Solo Cup Co., 412 F.3d 1340, 1349–50 (Fed. Cir. 2005) (“[t]there is no clear test for determining what constitutes the subject matter of a waiver, rather courts assess the circumstances of the disclosure, the nature of the legal advice sought and the prejudice caused to the parties in permitting or ‘prohibit further disclosures’), cert. refused, 547 US 1069 (2006). In the Ghio case, the Court of Appeal concluded that this decision required a hearing of the evidence and therefore returned the case for one.

Notably, the trial court has discretion to define the category of information for which the privilege has been lifted and must always be careful, according to Fed. A. Obviously. 502(a)(3)—whether the application of the rule furthers the principle of fairness. Identifier. at 776.

Note from the practitioner:

Now that subject waiver is the law in Connecticut, it is important to be mindful of, and perhaps be very cautious of, the specific disclosures made in routine discovery. When creating a privilege log and reviewing production to be requested or, conversely, production responding to a pending request, be aware if any disclosure will open the door to other otherwise privileged information. The adoption of this rule is not innovative and should not require the exercise of diligence that is not already due. But it can open the door to other disclosures that would otherwise have been prohibited, such as in Ghio, where the disclosure of the subject matter on appeal involved the production of certain attorney-client communications to a third party in separate secondary litigation.

The deadline to file a motion for certification with the Connecticut Supreme Court in Ghio has been extended to July 5, 2022; the losing party is expected to file such a request.

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